Without the nefarious nine, FOIA may never have seen the light of day. In other words, without the 9 exemptions, especially nasty number 5, the Freedom of Information Act, passed into law on July 4,1966 by a reluctant President Johnson, might have instead been vetoed or died in some committee. In 1974, a willing President Ford was convinced instead to veto that year’s Privacy Act, (which contained amendments that strengthened FOIA), by chief of staff Rumsfeld and deputy Cheney with legal advice from government lawyer A. Scalia. Congress overrode the veto and the act became law. And as we end the year with a Senate approved bill to reform FOIA now waiting for House approval, the blushing bride in this case is Boehner, prudishly reluctant to expose government secrets that may prove difficult for, well, government. At least that’s the rumor.

Is this reluctance, whether on the part of LBJ, Rumsfeld et al, or any politician or more likely bureaucrat nowadays, merely vested self-interest? The current proposal is hardly radical. It would bring to an end exemption number 5 which is so broad as to allow any government official a handy excuse not to comply with any request for information they choose not to, for whatever reason. So the question is who decides how necessary secrecy with respect to government produced documents and other information is? The tendency is for possessive, bureaucratic ownership of any information they, or any particular government agency, may have had a hand in creating. As anti-secrecy crusader Steven Aftergood states, “the secrecy system does not exist in some kind of abstract isolation. It is an ordinary bureaucratic artifact that is subject to pressure on many levels.” That means the usual foibles of human nature which can and usually do lead to power and greed fueling corruption of various kinds. The quite liberal Aftergood also suggests the boundary between secrecy and transparency is constantly shifting due to changing national security priorities. This does make sense. When combined with U of Chicago’s Geoffrey Stone’s assertion that government secrecy should be presumptively illegitimate, and only authorized when there is a clear and overriding justification, it clearly makes the proposed reforms of the FOIA more than justifiable. The reforms seem modest and do not involve endangering national security as can be argued was the case with Julian Assange. They should be passed.

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